A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Saturday, 20 December 2014

On 18 December, by a recorded vote of
117 in favour to 37 against, with 34 abstentions, the United
Nations General Assembly adopted the biannual resolution on the moratorium on
the use of the death penalty.

This is the fifth such resolution since
2007. The number of States in favour has steadily increased, providing
confirmation of the evolving law and practice with respect to capital
punishment.

The 2007 resolution was adopted by 104 in favour to 54
against, with 29 abstentions. The following year, a similar resolution was
adopted by 106 in favour to 46 against, with 34 abstentions. It was decided
that the issue would return to the Assembly’s agenda every second year. The
third moratorium resolution was adopted by the General Assembly in 2010 by 109
States in favour with 41 against and 35 abstentions. In the fourth moratorium
resolution, adopted in 2012, votes in favour totalled 111 with 41 against and
34 abstentions.

The number of States voting against the resolution has, in
the space of seven years, declined by 17. That is approximately 2.5 per year. But note as well that the number of States joining the majority on this resolution is accelerating. For the past two years, 3 States per year have changed their position to support for the resolution.

This trend in the political positions of States is also
reflected in their conduct.Ten years
ago, 62 States were deemed retentionist, defined as a State that has conducted
an execution within the past decade. Today, that number is about 37. That is a
decline of about 2.5 States every year.

Divide 37 by 2.5 and you get 14.8. The death penalty can be
expected to disappear by 2029, if not sooner.

Friday, 19 December 2014

John Louth of Oxford University Press has produced a fascinating map showing fifty leading human rights cases issued by a range of international and national courts and tribunals over the years. It is a wonderful introduction to the legal framework of human rights.

Thursday, 18 December 2014

The
annual International Criminal Court Summer School at the Irish Centre for Human
Rights is the premiere summer school specializing on the International Criminal
Court. The summer school allows participants the opportunity to attend a series
of intensive lectures over five days. The lectures are given by leading
academics on the subject and by legal professionals working at the
International Criminal Court. The summer school is attended by legal
professionals, academics, postgraduate students and NGOs. Participants are
provided with a detailed working knowledge of the establishment of the Court,
its structures and operations, and the applicable law. Participants are also
given the opportunity to network with the speakers throughout the week.
Lectures also speak to related issues in international criminal law, including:
genocide, war crimes, crimes against humanity, the crime of aggression,
universal jurisdiction, immunities, and the role of victims.

The
list of speakers at the 2015 ICC Summer School has yet to be confirmed. The
list of speakers at the 2014 ICC Summer School included:

Professor
William Schabas - Irish Centre for Human Rights, School of Law, NUI Galway and
School of Law, Middlesex University

Mr.
Fabricio Guariglia - Appeals Division of the Office of the Prosecutor at the
International Criminal Court

Mr.
John McManus - Crimes Against Humanity and War Crimes Section, Canadian
Department of Justice

Professor
Megan A. Fairlie - Florida International University

Dr.
Mohamed Badar - Northumbria University, United Kingdom

Professor
Donald M. Ferencz - Middlesex University School of Law, London

Dr. Kwadwo Appiagyei Atua - University of Ghana and
University of Lincoln

An
early bird registration fee of €400 is available for delegates who register
before 31 March 2015, with the fee for registrations after that date being
€450. The registration fee includes all course materials, all lunches and
refreshments, a social activity and a closing dinner. A limited number of
scholarships are available. Please see the General Information section of our
website for further information.

Sunday, 14 December 2014

It has been widely
reported that the ICC's Prosecutor has told the Security Council
that no further investigative action would be undertaken in the Darfur
situation. This is apparently owing to the Council's failure to act on securing
the arrest of the suspects in that situation, including the Sudanese President,
Omar Al Bashir. Notwithstanding that 'shelving' prosecutions, which seemingly
stops short of a formal withdrawal of the charges but incorporates a formal
strategy of non-action, is unforeseen by the Statute, this declaration
certainly comes as a shock, especially so soon after the charges were dropped in the Kenyatta case. It
means that, in the space of less than a fortnight, two sitting heads of state
facing charges before the International Criminal Court have effectively found
themselves off the hook, at least for the immediate future.

The Prosecutor's
frustration is understandable, given that every single decision in the case for the past
four years has concerned Bashir's travel to other states, apparently unhindered
by his arrest warrant. While invariably in these decisions, the Pre-Trial
Chamber has found that states have an obligation to transfer the accused, its
approach to has changed over time. Most notably, in my opinion, the emphasis
placed on the Security Council has diminished somewhat. Two 2010 decisions
informed the Security Council and Assembly of States Parties of Bashir's
presence in Kenya and Chad 'in order for them to take any measure they may deem
appropriate'. In the controversial decisions on Bashir's travel to
Malawi and Chad issued in 2011, the Pre-Trial Chamber found that the two states
had failed to cooperate with the Court and ordered the Registrar to transmit
the decision to the Security Council, but the 'action' proviso was missing.
More recent decisions on Ethiopia and Egypt invited the states to arrest
Bashir, and ordered the Registrar to communicate with the state in question,
without any mention of the Security Council. A 2014 decision on the Democratic
Republic of the Congo referred the decision to the Security Council pursuant to
Article 87(7), but no request for action was included with the referral. In
other words, the Pre-Trial Chamber has not expressly called the Security
Council to act on the non-compliance of states since 2010.

We might ask, then, what
the ICC's Prosecutor expects the Security Council to do. Her aim in announcing
a halt to the investigations was allegedly to 'shock this Council into action'.
The common position will be that the Security Council will not act because of
China's close relationship with Sudan, but in my opinion, each of the possible
actions pose significant legal, as well as political, problems. Let us examine
each of the options in detail.

(a) The Security
Council declares that there can be no Head of State immunity for international
crimes

This option is obviously
politically impossible, not least in the wake of the torture report issued earlier this week. For
the sake of argument, however, this hypothetical would arguably not stand up to
legal scrutiny either. By virtue of Article 25 of the UN Charter, states are
under an obligation to carry out the decisions of the Security Council, and
Article 103 states that their obligations under the Charter will prevail when
there is a conflict between those obligations and their obligations under any
other international agreement. This, in theory, solves the issue of the
conflicting obligations of African Union member states that are also state
parties to the ICC Statute. However, the 'international agreement' aspect of
Article 103 of the Charter means that Charter obligations cannot automatically
override contrary customary international law in the same manner. Given that
the International Court of Justice has held Head of State immunity to be a
principle of customary international law, this avenue would clearly be
problematic.

(b) The Security
Council either obliges Sudan to waive Bashir's immunity, or expressly
revokes that immunity itself

The Prosecutor might hope,
then, that the Security Council will demand that Sudan hands Bashir over to the
ICC and/or place an obligation on UN Member States to arrest and transfer him
to the ICC. Aside from the customary international law problem mentioned above,
and the fact that this is likely to be ultra vires the Security
Council's mandate, there are a number of additional problems raised by this
approach.

First, the ICC has relied
on Resolution 1593 (2005) as an existing basis for requiring action in
transferring Bashir to the Court. The resolution decided that the Government of
Sudan and other parties to the conflict 'shall cooperate fully with and provide
any necessary assistance to the Court', and urged all states to cooperate
fully, while recognising 'that States not party to the Rome Statute have no
obligation under the Statute'. According to the Pre-Trial Chamber:

By virtue of
said paragraph, the SC implicitly waived the immunities granted to Omar Al
Bashir under international law and attached to his position as a Head of State.

Following this reasoning,
there should be no need for the Security Council to take any further action in
demanding cooperation from states.

Second, even if we accept
the argument that SC Resolution 1593 impliedly waived Bashir's immunity, or if
a later SC Resolution were to more explicitly revoke his immunity, that action
by the Security Council does not relieve the ICC of its obligations under
Article 98(1) of the Statute. Pursuant to that provision, the Court would need
to obtain a waiver from Sudan of Bashir's immunity before it could proceed with
a request for surrender or assistance.

Third, and related to the
above point, such a move would challenge the independence of the ICC as an
institution. Just as Security Council referrals cannot restrict the application
of jurisdiction to any specified crimes or change the operation of the Statute,
nor can express or implied waivers of Head of State immunity override the Court's
obligations under its own Statute, particularly Article 98.

Fourth, there is clearly an
issue with the discriminatory nature of any Resolution waiving the immunity of
one head of state under international law, but not others. Discrimination of
this sort is already found in Resolution 1593 which included (on the insistence
of the United States) the following provision:

6. Decides that
nationals, current or former officials or personnel from a contributing State
outside Sudan which is not a party to the Rome Statute of the International
Criminal Court shall be subject to the exclusive jurisdiction of that
contributing State for all alleged acts or omissions arising out of or related
to operations in Sudan established or authorized by the Council or the African
Union, unless such exclusive jurisdiction has been expressly waived by that
contributing State;

As Goran Sluiter has argued, this paragraph goes against the
principles of equality before the law and non-discrimination. If the case were
to proceed on the basis of a Security Council Resolution that explicitly
targeted Bashir, the Prosecutor could find herself in difficulty. As stated in
theCelebici Trial Judgment:

The Prosecutor, in
exercising her discretion under the Statute in the investigation and indictment
of accused before the Tribunal, is subject to the principle of equality before
the law and to this requirement of non-discrimination.

Fifth, the obligation to
cooperate with the Court is a treaty obligation, applicable only to States
Parties to the Statute. Likewise, by signing up to the Rome Statute, States
Parties have waived immunities for their own nationals before the ICC, by
virtue of Article 27 of the Statute. If a SC Resolution were to extend such
obligations to States that are not party to the Rome Statute, it risks
violating the principle of pacta tertiis nec
nocent nec prosunt, or that treaties cannot impose obligations
upon states without their consent.

Thus, we might wonder
whether the solution that the Prosecutor seeks from the Security Council can
really be offered at this time. She might have been better placed to wait until
after April 2015, when Bashir might no longer be the Head of State after the
upcoming Sudanese elections. Regardless of the absence of any real progress in
the case, we might argue that keeping the Bashir prosecution active had both a
declaratory value, in that it showed that sitting Heads of State could be
prosecuted by the ICC, and a practical value, insofar as it raised some
difficulties for Bashir's travel to certain states. It is difficult to see what
positive implications this latest move will bring for the case.

Thursday, 11 December 2014

The Irish Government announced on Wednesday 3rd
December that they have decided to request the European Court of Human Rights
to re-open the Ireland v UK case
(1971-1978). Their decision was prompted by the grave revelations, exposed in
the ‘The Torture Files’ by the RTE Investigations Unit that drew on material
unearthed in the British National Archives. In the ‘The Torture Files’, the RTE
Investigations Unit argued that new evidence could justify a re-visiting of the
European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme was broadcast on RTE
on Wednesday 4th June 2014. It led to calls from Amnesty
International and the Sinn Féin President Gerry Adams to request the ECHR to
re-open the case. Amnesty International’s Northern Ireland Programme Director
Patrick Corrigan described the evidence that the British Government misled the
European Commission and Court of Human Rights during the proceedings as ‘deeply
worrying’. The revelations in the Torture
Files were discussed in an earlier blog
post.

What has happened since the
broadcast was that the RTE Investigations Unit was asked to hand over its
research for the broadcast to the Law firm for the ‘Hooden Men’ and to the
Irish Department of Foreign Affairs. This was to form the critical mass of
research for the Irish Government’s consideration of whether to request the
ECHR to re-open the case and reconsider its decision on article 3 and the five
techniques. It primarily consisted of research collected from the British
Archives. The timeline for this request to the ECHR ran out on Thursday 4th
December. In advance of the deadline, the legal representatives of the ‘Hooden
Men’ submitted an application to the Irish High Court to compel the Irish
Government to make a decision. However, on Wednesday 3rd December, the
Irish Government submitted that they would request to re-open the case. Minister for Foreign Affairs Charlie Flanagan stated
in a press release:

‘The Government is aware of the suffering of the
individual men and of their families, of the significance of this case, and of
the weight of these allegations. The archival material which underlay the RTÉ
documentary was therefore taken very seriously by the Government and was subject
to thorough legal analysis and advice. On the basis of the new material
uncovered, it will be contended that the ill-treatment suffered by the Hooded
Men should be recognised as torture. The Government’s decision was not taken
lightly. As EU partners, UK and Ireland have worked together to promote
human rights in many fora and during the original case, the UK did not contest
before the European Court of Human Rights that a breach of Article 3 of the
European Convention of Human rights took place. The British and Irish
Governments have both worked hard to build stronger more trusting relations in
recent years and I believe that this relationship will now stand to us as we
work through the serious matters raised by these cases which have come to light
in recent months’.

This blog post was contributed by Dr Aisling
O’Sullivan, lecturer in law at Sussex Law School. Dr O’Sullivan was project
researcher with Professor Schabas, who was the Principal Investigator, on a
project funded by the Irish Research Council for the Humanities and Social
Sciences ‘Ireland’s
Participation in International Human Rights Law and Institutions’. The
research included an investigation of Irish and British National Archives files
on the Ireland v UK case. The
research, which was undertaken at the Irish Centre for Human Rights, was used
by RTE in preparation of ‘The Torture Files’.

Wednesday, 10 December 2014

This is
a guest post by Dr Michelle Farrell, who is a lecturer in Law in the School of
Law and Social Justice at the University of Liverpool. She is the author of The Prohibition of Torture in
Exceptional Circumstances (Cambridge University Press, 2013).

#Torture

Torture is back in the headlines. On 9 December,
the Senate Select Committee on Intelligence releasedits long
awaited controversial report on the use of torture in the
aftermath of 11 September by the CIA. The report was over 6 years in
production, runs to thousands of pages, is heavily redacted and – surprise,
surprise – illustrates that –
amongst other things – the methods used were ineffective, were based on
fabricated claims of effectiveness and were much more brutal and were used much
more extensively than was recounted. The report’s release has caused a huge
stir;
so far there has been plenty of commentary on the question of criminal
accountability and there have been lashings of liberal outrage at the extent
and methods of violence used. Many have pointed out that the contents of the
report ought to come as no surprise. We knew – or suspected – a lot of this
already. The report will no doubt be dissected in great detail over the coming
days, weeks and years.

Bad
Torture v Good Torture

Ostensible liberal democracies do not like to be
called out as torture practicing states. In an effort to explain away the
violence, states seek – as the Bush administration did – legal
and moral cover, intellectual and popular support in the form
of torture apology and justificatory rationales in the form of necessity and life-saving
information extraction. Moreover, states invariably try to recast torture as
something else. For the Bush administration, it was “enhanced interrogation
techniques”. For the Israeli
Landau Commission, it was “moderate physical pressure”. These
efforts at definitional gymnastics and legal and moral justification produce a
torture compliant culture.

Revisiting
the UK’s use of torture

Beyond the Senate report in which the UK is
implicated, the UK government and indeed the European Court of Human
Rightshave a distinct – yet not unrelated – torture
issue to handle. Earlier this month, on 2 December, Ireland’s Minister for
Foreign Affairs, Charlie Flanagan, announced that
Ireland would request the European Court of Human
Rightsto
revisit its decision in the infamous case of Ireland v UK – a torture-centred case – decided in 1978. The
decision of the Court in this case set the scene for much legal definitional
wrangling over the meaning of torture. Ireland
v UK was far reaching in impact and in a way that does not flatter. The
decision was cited in the Bybee
‘torture’ memo and by the Landau Commission in Israel in the
late 1980s to justify both states’ unconscionable interpretations of torture.

Ireland
v UK
was initially
taken by Ireland against the UK to the European Commission on
Human Rights in December 1971. It concerned the alleged
breach by the UK of a number of provisions of the European
Convention on Human Rights following the introduction of internment in
Northern Ireland in August 1971. At the heart of the case were allegations of
the use of torture and other forms of ill-treatment by British agents against a
number of individuals – the so-called ‘hooded men’ - under
interrogation in secret detention centres in Northern Ireland. Their torture
has become known, euphemistically, as “interrogation-in-depth” or the “five
techniques”. These five techniques were hooding, wall standing in a stress
position, white noise, sleep deprivation and deprivation of food and water,
perpetrated over a period of days and enforced through - as we now know -
assaults and death threats.

Torture
one day, inhuman and degrading the next

The European Commission found that the use of
the “five techniques” in the interrogation of fourteen individuals amounted to
torture in breach of Article 3 of the European Convention. Article 3 states
simply: “No one shall be subjected to torture or to inhuman and degrading
treatment or punishment.” The Commission reached this conclusion having reasoned
that the techniques were deliberately employed to break the will of the
individuals. Although, the Commission reasoned, the five techniques “might not
necessarily cause any severe after effects”, it saw in their use “a modern
system of torture”.

Following the release of the Commission’s report
in 1976, the Government of Ireland had the case referred to the European Court,
with a view to achieving an authoritative Court decision. The Court offered a
different interpretation of the five techniques to that of the Commission. By a
vote of 14 to 3, it found that, used in combination, the five techniques constituted
inhuman and degrading treatment in breach of Article 3. However, the techniques
did not constitute torture as “they did not occasion suffering of the
particular intensity and cruelty implied by the word torture as so understood”.
In reaching this determination, the Court introduced the idea that there is “a
special stigma” attached to torture which differentiates it from inhuman and
degrading treatment.

The Torture Files

On 24 November, Amnesty
International requested Ireland to reopen this case. Their request
followed the unearthing of new evidence by the Pat Finucane Centre and by
RTÉ, Ireland’s national broadcaster. In June
2014, RTÉ aired the
Torture Files, a half hour documentary which disclosed archival
material demonstrating that the British government had withheld evidence during
the European Commission and Court hearings. The Torture Files also documents
the experience of the fourteen men subjected to the five techniques, and it
shows, sensitively and significantly, the immediate and the long-term suffering
endured by the men. In one scene, the wife of one of the interrogated men, Pat
Shivers, who died of cancer in 1985, remarks “even
yet, I think, I wish they had killed him then. It would have saved him the
horrors of having to relive that over and over again”. Her words recall those
of Jean Améry, a member of the Belgian resistance, tortured by the Gestapo in
1943: “Whoever was tortured, stays tortured”.

New
Disclosures

The Torture Files is not only effective in
un-hooding the men, made so famous and yet anonymous by these European cases.
It also demonstrates the extent of British bad faith during the proceedings. The
documentary reveals that the British Government knew that the use of the five
techniques produced long term psychological effects, a fact that it failed to
disclose during the proceedings. In addition, the documentary exposes the
extent to which the use of the five techniques constituted a political decision
at the highest levels, sanctioned by then Secretary of State for Defence, Lord
Carrington. At the Commission and the Court, the Government denied such
responsibility.

The Troubling
Role of the European Court

Whether or not this case is substantively
revisited, I do think it is important to remember the damaging role
played by the European Court of Human Rights in saving the UK from the “special
stigma” of torture. Whilst, of course, the real crimes in all of this were
committed by the British authorities and the individual perpetrators, the
European Court ought not to be excused for its erroneous decision in 1978 on
the basis that it did not have all the
evidence, since disclosed by the Torture Files. The European Court had the same
information as the Commission. The Court reached its different determination on
the basis of flawed and dangerous interpretations wielded because, in the face
of one of Europe’s leading and influential liberal democracies, it acted
politically and spinelessly.

Perhaps it is with the benefit both of hindsight
and of being far-removed from the fractious politics of the 1970s that I and
others can criticise the European Court for its decision in Ireland v UK. Yet those judges exercised
arrogant discretion in finding themselves capable of determining how
ill-treated these men were, even if deference to the UK was the underpinning
motivation. The interpretational aids dragged in to the Court to decide Ireland v UK are still in play. Torture
versus other forms of ill-treatment is still – for the Court - a matter of
severity of pain; it still has a ‘special stigma’. The Court has generated a
confused concept of torture. The treatment of the “hooded men” was torture stricto sensu. To avoid the “bad word”,
the Court downplayed inhuman and degrading treatment.Oddly, therefore, the Court managed, by
creating a special stigma for torture, to convey inhuman and degrading
treatment as somehow less severe, less serious. And this was all done under the
banner of human rights.

The European Court is powerless to stop torture.
It does have the power to stay out of messy debates about thresholds of pain
and suffering. More importantly, it has a responsibility to victims. The casewas poorly and politically reasoned. It
remains relevant because it has influenced global understanding of torture to
date. It remains relevant because it concerned a state which has since gone on
to practice torture again, in Iraq and elsewhere. And it remains relevant
because it contains the kind of logic that has underpinned the whole US torture
farce.Perhaps today’s judges will have
the chance to correct their predecessors.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

Search This Blog

Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.